By Norton Tooby

The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no counsel who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

            There are, however, three possible grounds of legal invalidity—two stronger and the third so weak it probably should not be made.

(1) Where the court takes a waiver of the right to (appointed) counsel, it is obligated to advise the defendant concerning the dangers and disadvantages of self-representation.  Iowa v. Tovar,541 U.S. 77, 81, 124 S.Ct. 1379, (2004).  After Padilla, one of those dangers is that the court is not obligated to give the defendant accurate immigration advice, whereas counsel, appointed or not, is obligated to do so under Padilla.  Post-conviction counsel could argue that the court is therefore now required to warn a defendant who waives counsel of the fact that the defendant is also waiving the right to accurate advice regarding the immigration consequences of a plea.

(2) In California state courts even prior to Padilla, and in the Ninth Circuit after Padilla, the courts have held that a defendant’s ignorance concerning the actual immigration consequences of a plea can constitute “good cause” to withdraw the plea.  See People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.Rptr. 596; United States v. Bonilla, 637 F.3d 980, 986 (9th Cir. 2011)

(holding that defense counsel's inadequate legal advice regarding the immigration consequences of a guilty plea constituted a "fair and just" reason for withdrawing the plea under Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure).

(3) The traditional rule is that the court has no constitutional obligation to give any advice to the defendant concerning the adverse immigration consequences (even the possible ones) at the time of plea, only the direct penal consequences.  See In re Resendiz 25 Cal 4th 230, (2001). 243 n.7. Some appellants have raised claims on appeal that after Padilla, these consequences have now become “direct” consequences, but the courts have so far uniformly rejected this claim.  It is nonetheless possible to raise this claim still, arguing that Padilla’s holding that deportation is a “penalty” changed this rule.  Padilla, Supreme, at 14800. The correct view, however, is that even after Padilla, immigration consequences are not direct penal consequences because they are not imposed by the criminal court.  Padilla does not change this.  It simply says that even if deportation consequences are collateral, defense counsel still has the duty to advise the defendant accurately concerning them.  In my opinion, it is a lost cause to try to label immigration consequences “direct” and therefore impose the duty on the court to advise the defendant correctly concerning them, as Padilla requires of defense counsel.  This is because the court has no duty to investigate the defendant’s immigration status, and has no duty to do the legal research necessary to identify the exact immigration consequences that will befall the defendant if he or she takes this plea.  It is unreasonable to impose these duties of counsel on the court, and the court in some jurisdictions, like California, is forbidden to inquire as to the defendant’s immigration consequences.  See California Penal Code § 1016.5(d)(last sentence).  The most that can reasonably be expected of the court is to make sure counsel does this job, and to make sure the defendant knows that by waiving counsel, s/he is waiving the right to have this information concerning the actual (as opposed to merely potential) immigration consequences of the plea.

            Post-conviction counsel can therefore argue:

(1)  the court failed to warn the defendant that by waiving counsel, he was also losing accurate advice on the immigration consequences of the plea, and the waiver of counsel was therefore legally invalid, and

(2)  the defendant’s ignorance of the immigration consequences of the plea constituted good cause to withdraw the plea.